September 2, 2019
Considering Judge Anita B. Brody’s numerous questionable decisions tilting the Concussion Settlement in favor of the NFL, it’s nice to report a departure from the norm. In an objection that managed to fly under the radar until an “implementation decision” was rendered, on August 20, Judge Brody rejected the NFL’s junk science pitch in regard to an Alzheimer’s claim.
On March 20, the NFL challenged the Special Master’s determination for an Alzheimer’s award, once again claiming abuse of discretion in approving the claim of an unidentified player, whom I’ll reference as “Player Doe”
Though the NFL objection was thankfully fended off through briefs by Player Doe’s attorney David Langfitt and Class Counsel Christopher Seeger, the objection shows the extreme measures the NFL will attempt in order to fight a player who unquestionably qualifies for compensation.
The objection arose when Player Doe, whose award for Alzheimer’s disease was appealed by the NFL and on February 28, the Special Master rejected the NFL’s arguments and confirmed the award. The following excerpt from Judge Brody’s determination capsizes twenty-three pages of arguments into a brief paragraph:
Player Doe’s attorney, David Langfitt points out what should be obvious:
The NFL doesn’t dispute the 2018 diagnosis—in fact, based on the T-Scores Langfitt pointed to “in 2018 for the cognitive domain of learning and memory were 16, 24, 25, 31, 34, and 39 which show impairment on every single test and a severe level of impairment ,that signals Alzheimer’s,” there really isn’t a way they could credibly dispute the diagnosis. So, instead the NFL puts forth the bizarre argument that the dementia experienced by Doe in 2012 and even prior to that wasn’t really Alzheimer’s since the doctors didn’t say it was Alzheimer’s disease at the time.
Langfitt points out the progressive nature of the disease of Alzheimer’s and that the earlier conservative diagnosis of dementia, could not have been anything other than Alzheimer’s disease—a disease that progresses gradually and isn’t always identified in the earlier stages. This lack of identification doesn’t mean that it didn’t exist any more than an initial stage four cancer diagnosis doesn’t mean the cancer suddenly appeared at stage 4 and did not exist in stages 3, 2, and 1.
Into the (CTE) Weeds
|Another pearl of wisdom from Langfitt’s brief relates to a CTE diagnosis, which he calls “a diagnosis popular in 2012.” This is correct in that “CTE” lawsuits were being filed at that time following the awareness of CTE through Dr. Bennet Omalu’s diagnosis of Mike Webster and the “Concussion” movie that told his story in addition to the Fainaru brothers groundbreaking book and documentary, “League of Denial.”
As it was when Dr. Omalu made his discovery known and the NFL’s attempts to silence and discredit him, CTE was the elephant in the room and still is. 110 of 111 brains of symptomatic players were shown through posthumous pathology to have the dreaded disease. A prevalence study by Zachary Binney and Kathryn Bachynski, published in Neurology, based on the number of player deaths during the time of the “110 of 111” CTE autopsies predicted that up to 30% of NFL players will contract the disease.
They began with a complete list of 1,142 former NFL players who died during the study timeframe (February 2008-May2016). Assuming all symptomatic players who died during this period donated their brains and were the only players to contract CTE, the minimum prevalence was calculated at 9.6%.
The researchers point out, however, that while symptomatic players’ families seem more likely to donate the decedent’s brain, the number autopsied is unlikely to encompass all players who died with CTE symptoms. They offered the following example to demonstrate their calculations:
“[I]f we assume 50% of CTE cases donated their brains, then there are 110/0.50 = 220 total CTE cases in the population. This leaves 922 noncases, 1 of whom donated his brain, making the probability of donation among noncases 0.11%. This implies that the prevalence of CTE is 220/1,142 = 19.3% and that those with CTE were 461 times more likely to donate their brains than those without CTE. If instead 90% of CTE cases donated their brains, the estimated prevalence is 10.7%.”
The authors tended to lean toward an estimate of between 20 and 30%.
Unfortunately, CTE is still the elephant in the room. Most players who are having issues believe they suffer from CTE and they are likely correct. Unfortunately, aside from players who died with CTE between July 7, 2014, and April 22, 2015, CTE isn’t covered in the settlement, and therefore medical references to it can and often are turned against a player as suffering a non-compensable condition. Since CTE isn’t compensated in the settlement and there is currently no accepted method of diagnosis for CTE outside posthumous pathology, living players would be better served by discussing symptoms of diagnoses that are compensated through the settlement in order for a physician to determine if a player is suffering from a Qualifying Diagnosis. While CTE is still the elephant in the room, and the settlement’s Qualifying Diagnoses, likely stem from CTE, drawing attention to that fact only gives the NFL additional ammo with which to attack the claims of legitimately ill men.
Out of the Weeds
The NFL’s objection rested on two arguments.
Because the examining MAF physician, upon examining more than a decade of medical records concluded that Player Doe, who first began having memory issues in 2002 and was diagnosed with dementia in 2012, that the Alzheimer’s disease he now suffers was the cause of dementia in the 2012 diagnosis. Langfitt notes this is a conservative estimate since Doe had experienced problems consistent with the early stages of Alzheimer’s disease a decade prior.
The NFL claims this isn’t provided for in the settlement agreement and disputes FAQ 93 which permits a physician exactly the discretion exercised by the MAF neurologist who examined Player Doe.
Seeger points out in his brief that “the NFL does not (because it cannot) point to any language from the Settlement Agreement providing that the date of the Qualifying Diagnosis is the date on which the Retired Player was first examined by the Diagnosing Physician. If the NFL’s position were correct, surely the NFL would cite to the provision of the Settlement Agreement that so limits the practice of Diagnosing Physicians. It does not because no such provision exists.”
The NFL’s other argument is that the Special Master abused his discretion in opting not to consult with the Appeals Advisory Panel.
The NFL speaks with forked tongue since I’m unaware of any of the Paul Weiss attorneys possessing dual medical and law degrees, yet they with great regularity dispute the diagnoses of board-certified neurologists. Of course, it doesn’t take a rocket scientist (or neurologist) to see the fallacy in the NFL’s ill-conceived attempt to discredit the claim.
David Langfitt notes that this objection was filed at the same time a ruling on the NFL’s objection seeking mandatory AAP consultation was pending.
He then demonstrates that the NFL’s argument is moot in that Judge Brody rejected the argument in her April 12, 2019 determination.
Seeger also pointed to another instance in which the NFL speaks with forked tongue
The NFL wants it both ways. If they feel a player’s prior records don’t support a current diagnosis, they want them reviewed, and in the case of Amon Gordon, even presented a report by an NFL hired and paid doctor who found him unimpaired in order to deny his CBA bargained disability—a record neither Gordon nor his attorney had ever seen, and the only record the NFL could find that didn’t support his claim.
As seen here, if the player’s prior records do support a Qualifying Diagnosis and as with Player Doe, support that the condition predated his MAF examination, they want the records discarded.
While I’ve criticized a number of Judge Brody’s ruling, including her decision to give the claims administrator front-end access to AAP while at least maintaining that back-end use of the AAP by the Special Master is optional, she got this one right.
She correctly points out “If the date of the diagnosis was always to be the date of the examination, the Settlement would say this, and would require a Diagnosing Physician Certification to include only the ‘date of the examination.’”
She references FAQ 99 which clearly states that the physician making the diagnosis permits the doctor to use his sound clinical judgment in pinpointing the date the condition manifested.
In addition to pointing to the lack of prohibition in the settlement agreement for a diagnosing physician to determine an earlier onset date, she reiterates that the Special Master is not mandated to the compulsory use of the AAP.
She adds, “An abuse of discretion occurs only where the district court’s decision is ‘arbitrary, fanciful, or clearly unreasonable’-in short, where ‘no reasonable person would adopt the district court’s view,” following that the Special Master’s decision “was well within the range of reasonable choices.”
I rarely have the opportunity to report good news about the settlement. More often than not, I’ve reported gains the NFL has made in tilting the agreement in its favor after the players were bound by the retroactive alterations. This outcome demonstrates that good things can happen when Class Counsel supports a player and his attorney.
The NFL has demonstrated beyond a doubt that they will attack any player with any detail they can find or manufacture in order to avoid paying legitimate claims. Hopefully, since the leopard has proven that it doesn’t change its spots, there will be more outcomes like this one in which Class Counsel decides to join with players’ counsel and jointly confront the NFL head-on. Playing nice with a menacing leopard only results in an increasingly savage and territorial beast, but this ruling demonstrates that the feral feline isn’t invincible.
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